judgment creditor, stayed the delivery to the debtor of the Accountant-General's cheque for a sum in Court to which he was entitled, a fi. fa. having been taken out upon the judgment. The petition further asked that the cheque might be delivered to the sheriff, but that point was not then disposed of. It seems that the bank will not take upon itself the responsibility of charging a part only of a fund standing in the debtor's name (s). If the defendant pays the debt after the order nisi, he must pay the costs both of that order and of the application to discharge it (s). Where an order has been obtained charging a debtor's equitable interest in stock standing in the names of trustees, the Court will not interfere to discharge the Judge's order, if the determination of the debtor's interest in the stock depends on the question of his insolvency (t); nor if it is a matter of equitable construction whether the debtor has an interest in the stock (u). But if the property charged is clearly not within reach of the Act, the Court will set the charging order aside (x). Where stock stands in the name of a trustee for the defendant and others, the defendant's interest is charged (y). Quære, whether the charging order attaches where the interest of the debtor is to go over if he charges it (y). Where a dividend has already accrued, that is charged, notwithstanding the gift over (y). beneficial The debtor must have a beneficial interest in his own right (z), Debtor's and at the date of the order nisi; for if, between the obtaining the interest only judgment and the order nisi, the debtor has assigned his interest, charged. the order nisi will be inoperative; even in the case of an equitable interest of which no notice has been given to the trustee of the assignment (a). The charging order only affects the interest which the debtor has in the funds, and not prior incumbrances, similarly to the operation of the charge upon real estate under s. 13 (b), and under no circumstances can a charging order have priority over previous equitable incumbrances (c): thus a mortgage of (s) Stanley v. Bond, 8 Beav. 50. (t) Rogers v. Holloway, 5 Man. & G. 292. (u) Fowler v. Churchill, sup. (x) Morris v. Manesty, 7 Q. B. 674. (y) S. W. Loan, &c. Co. v. Robertson, 8 Q. B. D. 17. (z) Gill v. The Continental Gas Co., 7 L. R. Exc. 332; notwithstanding Fuller (a) Scott v. Lord Hastings, 4 K. & J. (b) Hulkes v. Day, 10 Sim. 41; Fowler v. Churchill, sup.; and sup. p. 65. (c) Brearcliff v. Dorrington, 14 Jur. 1101, V. C. Knight Bruce; Eyre v. 85 Service. Death of defendant. an equitable interest in stock, of which no notice was given to the trustees, would be preferred to the charging order (d). An order nisi served on the solicitor and brother and at the last address of the debtor was deemed sufficient without an order for substituted service (e). A charging order, when made absolute, operates from the making of the order nisi (ƒ), and an administration decree in the interval will not affect it (g). A charging order absolute cannot be made if the defendant was dead when the order nisi was made (h). As a charging order has no greater effect than a charge executed by the judgment debtor, a charging order on a judgment by default for a debt which was incapable of being enforced, will be inoperative (i). (4). By what Courts the order can be made. The charging order must be made by a Judge in Chambers in the first instance, and then the Court may, upon application, set it aside; and that, it seems, although the order nisi has not been made absolute (). A charging order on stock or shares may be made by any Divisional Court or by any Judge, and the proceedings for obtaining such order are to be such as are directed, and the effect shall be such as is provided by 1 & 2 Vict. c. 110, ss. 14 & 15, and 3 & 4 Vict. c. 82, s. 1 (7). It is no longer necessary, as it was formerly, to procure a charging order in the Court where judgment issued, before applying for a stop order (m). Charging orders absolute cannot be made by the master or registrar in the Common Law or Probate Divisions (n). McDowell, 9 H. L. 619, 626, 642; (d) Beavan v. Lord Oxford, 2 Jur. N. S. (e) Re Paragon Co., 8 Jur. N. S. 11, V. C. Wood. (f) Haly v. Barry, 3 Ch. 452, explaining Warburton v. Hill, Kay, 470. (g) Ib. See Scott v. Lord Hastings, 4 K. & J. 633. (h) Finney v. Hinde, 4 Q. B. D. 102. (i) Re Onslow's Trusts, 20 Eq. 677, V. C. Hall. (k) Morris v. Manesty, 7 Q. B. 674, overruling on this point Brown v. Bamford, 9 M. & W. 42; Fowler v. Churchill, 11 M. & W. 57. (1) Ord. XLVI. r. 1. (m) Hopewell v. Barnes, 1 Ch. D. 630, V. C. Malins. (n) Ord. LIV. r. 12. SECT. 5. WHAT PROPERTY WITHIN THE STATUTE. 87 The title of the order in the Act is sufficient, but if in the matter The title. also, it will not be invalidated (o). (5.) What property within the statute. A government annuity to which the debtor is entitled as executor and legatee is not within the act (p). It is doubtful whether an annuity payable out of the suitors' Suitors' fund. fund can be charged under these Acts, there being no specific stock, but only a fluctuating fund charged; the Court, however, allowed the order to stand quantum valeat (q). A pension granted by the East India Company cannot be so charged (r). A contingent equitable interest in shares may (s), but not an interest in the proceeds of the sale of shares by trustees under a will for payment of debts and ultimately for the debtor (t); and where the charging order would not be effectual, as the stock stood in the names of trustees for others, a bill by the judgment creditor to set aside a voluntary settlement of the stock was allowed without obtaining a charging order (u). Where by a decree trustees are ordered to pay the dividends of stock to a judgment debtor against which a charging order is obtained, no application can be made in the suit by the judgment creditor; an action must, if necessary, be brought (x). (6.) Generally. A Court of Equity will make a stop charging order under the above Act (y). order as auxiliary to a Stop order. Where the fund is in Court, there must be a petition in the suit to give effect to the charging order (z), but the charging order may be made by the judge of any other Court (a). (0) Marquis of Hastings v. Beavan, 5 L. T. N. S. 734; 4 De G. F. & Jo. 316; 10 W. R. 206. (p) Taylor v. Turnbull, 4 H. & N. 495; 33 L. T. Exc. 153, O. S. (2) Witham v. Lynch, 1 Exc. 391; 17 L. J. Ex. 13. (r) Morris v. Manesty, sup. (8) Baker v. Tynte, 2 El. & El. 897; 29 L. J. Q. B. 233; 6 Jur. N. S. 1192; Cragg v. Taylor, 1 L. R. Ex. 148; 2 ib. 131. (t) Dixon v. Wrench, 4 L. R. Ex. 154. (u) Goldsmith v. Russell, 5 De G. M. (x) Newton v. Askew, 11 Beav. 446. (z) Reece v. Taylor, 5 De G. & S. 480. Forfeiture on alienation. Married woman. A charging order under this statute has been held to create such an incumbrance as will forfeit an estate determinable on alienation (a). Likewise a garnishee order (b). A charging order may be made upon a judgment against a married woman since the Married Women's Property Act, 1870, and will bind her interest in funds to which she is entitled for her separate use without power of anticipation (c). Where a difficulty was found, in executing a sequestration upon a judgment for costs against a married woman who had separate estate in stock, from not being able to serve her personally with the subpoena for costs, a receiver was granted in the action instead of a charging order (d). A judgment creditor cannot obtain a charge in equity on an equitable debt in analogy to an attachment of a legal debt under the garnishee clauses of the Common Law Procedure Act, 1854 (e). A charging order upon funds in the hands of trustees, does not affect the right of the trustees to their costs (ƒ). As to the effect of the charging order generally, see (g). A sale cannot be made under a charging order without a separate action (h). (a) Montefiore v. Behrens, 1 Eq. 171; 35 Beav. 95, but qu.; see inf. p. 174; and S. W. Loan, &e. Co. v. Robertson, 8 Q. B. D. 17. (b) Bates v. B. W. N. 1884—129, Pearson, J. (c) Sanger v. S., 11 Eq. 470, M. R.; see London and Provincial Bank v. Bogle, 7 Ch. D. 773, V. C. Bacon. (d) Bryant v. Bull, 10 Ch. D. 153, V. C. Bacon; Fuggle v. Bland, 11 Q. B. D. 711; Jud. Act, 1873, s. 25, sub-s. 8. (e) Horsley v. Cox, Ch. 92. (f) Smith v. Youde, 2 Fost. & Fin. 376. (g) Snow & W. Ann. Pr. 455, and cases. (h) Leggot v. Western, 12 Q. B. D. 287. deeds and By the Registry Acts, all deeds and wills concerning estates Registry of within the north (a), east (b), or west (c) ridings of the county of wills. York, or within the town and county of Kingston-upon-Hull (d), or within the county of Middlesex (e), are directed to be registered. And all such deeds are to be adjudged fraudulent and void against any subsequent purchaser or mortgagee for valuable consideration, unless a memorial thereof be registered in the manner thereby respectively prescribed before the registering of the memorial of the deed under which such subsequent purchaser or mortgagee shall claim. And every devise by will is to be fraudulent and void against any subsequent purchaser or mortgagee for valuable consideration, unless a memorial be registered within six months after the death within the Kingdom of Great Britain, or within three years after the death beyond the seas, of the devisor, or where the will is contested, or there is other inevitable difficulty in registration, within six months after the attainment of the will or a probate thereof, or the removal of any impediment to registration if the impediment were registered within the like periods after the death of the devisor (ƒ). Similar provisions, with some variations, exist in the other Acts (g). 18. (a) 8 Geo. II. c. 6. (b) 6 Anne, c. 35. (c) 2 & 3 Anne, c. 4; 5 & 6 Anne, c. (d) 6 Anne, c. 35. (e) 7 Anne, c. 20. (ƒ) 6 Anne, c. 35, ss. 1, 14, 15. (g) 7 Anne, c. 20; 2 & 3 Anne, c. 4; 5 Anne, c. 18; 6 Anne, c. 2; 8 Geo. II. |